Haskell v. Ayres

• Decision Date: 24 October 1876
• Citation: 35 Mich. 89
• Court: Michigan Supreme Court
• Parties: Nathaniel B. Haskell and another v. Frederick S. Ayres and others

35 Mich. 89

Nathaniel B. Haskell and another v. Frederick S. Ayres and others

Supreme Court of Michigan

October 24, 1876

Heard October 6, 1876

Error to Huron Circuit.

This was trover for certain timber which the plaintiffs, Ayres and others, had purchased as standing timber of one Kingsley, and which defendants, Haskell and another, had purchased of one who had cut and sold it under an arrangement with Kingsley's vendee of the land. Kingsley's sale of the timber was with the privilege of removal within three years but this timber was cut by defendant's vendor long after the expiration of the three years. After the sale of the standing timber, Kingsley conveyed the land, reserving the timber; and plaintiffs claimed that Kingsley had extended the time by parol from time to time for taking off the timber. The judgment below was for plaintiffs, and defendants bring error.

Judgment affirmed, with costs.

G. S Engle and Hoyt Post, for plaintiffs in error.

Richard Winsor and H. B. Carpenter, for defendants in error.

OPINION

Cooley, Ch. J.

This case, when before us on a former occasion (32 Mich. 93), was disposed of on the terms of the written agreement by which Kingsley had sold standing timber to be taken off within three years, which time had elapsed before the timber now in controversy was cut. Several new facts are now in the case. It appears than when Kingsley afterwards sold the land he expressly reserved the timber, and he testifies that he extended indefinitely the time for taking the timber off. Under this state of testimony the following objections are taken to the recovery which the plaintiffs below have obtained:

1. That the original sale of the timber by Kingsley was void, because made before he acquired title to the land. But it appears that he acquired title before the three years expired; and that would be sufficient to validate his sale. He could not then dispute it, not could any third person.

2. That his extensions of time to take off the growing timber were invalid, because not in writing, as required by the statute of frauds. But whether valid or not originally, they would be good as licenses, so far as they were acted upon, and Kingsley's testimony is full to the fact that for all the timber cut he received payment.

3. That the agreement in itself was ineffectual to pass title to any particular timber, because the sale was not of all the timber on the land, but only...